Punishment in the eyes of the Constitutional Court of South Africa: the relationship between punishment and the rights of an offender in the sentencing of primary caregivers of children

Abstract

Punishment has mostly focused on achieving its objectives without considering the impact a sentence will have on the rights of the offender and those under the offender's care. Drawing on the jurisprudence of the Constitutional Court, the author illustrates how the Court, relying on the Constitution of the Republic of South Africa, 1996, has shifted the punishment discourse from one that emphasises the objectives of punishment to one that calls upon sentencing officers to not only emphasise the objectives of punishment, but also to consider the effect the punishment will have on the children if their primary caregiver was sentenced to imprisonment.